Sullivan v. Harris

• Decision Date: 23 November 1937
• Docket Number: 44017.
• Citation: 276 N.W. 88,224 Iowa 345
• Parties: SULLIVAN v. HARRIS et ux.
• Court: Iowa Supreme Court

276 N.W. 88

224 Iowa 345

SULLIVAN v. HARRIS et ux.

No. 44017.

Supreme Court of Iowa.

November 23, 1937

Appeal from District Court, Poweshiek County; J. G. Patterson Judge.

Plaintiff sued for damages received in automobile accident while riding in car belonging to defendants as a guest and invitee. Defendant moved for directed verdict at close of plaintiff's evidence, and again at the close of all the evidence. Motion overruled. Case submitted to jury, which returned verdict for the plaintiff; judgment rendered thereon, to all of which defendants excepted, and appeal to this court.

Reversed.

Carl F. Jordan, of Cedar Rapids, for appellants.

Clyde McFarlin, of Montezuma, and Emmert, James & Lindgren, of Des Moines, for appellee.

PARSONS, Justice.

Plaintiff in this case, Grace Sullivan, brought suit against Dr. and Mrs. E. E. Harris for damages resulting from an automobile accident, alleging in her petition that Mrs. Harris had engaged her to accompany Mrs. Harris in the automobile to Minneapolis, Minn., and that she was to help drive the car that Mrs. Harris orally agreed to pay plaintiff's expenses. That under this agreement plaintiff and Mrs. Harris started to drive to Minneapolis, and on the way an accident happened which resulted in the injuries of which plaintiff complains, which were quite serious.

The petition set forth that the car in which plaintiff was riding belonged to Dr. E. E. Harris, and that Mrs. Harris was driving same with his knowledge and consent; that plaintiff accompanied Mrs. Harris at her request and pursuant to the agreement, for the benefit and company of Mrs. Harris. The petition set out various specifications of negligence of defendant, which were the sole and proximate cause of the accident and plaintiff's injuries, and that no negligence of the plaintiff contributed thereto; and prayed for damages in the sum of $13,819.75.

In an amendment to the petition, plaintiff set forth she was riding with Mrs. Harris, but not as a guest; that she was not in any way in control of the car; that she had not been driving the car at any time prior to the accident; and that Mrs. Harris prior to and at the time she turned the car across and through a ridge of gravel in the center of the roadway, was operating the car at an excessive rate of speed; that she failed and neglected to slow the speed of the automobile before making the turn; that the car skidded, and defendant stepped on the accelerator, causing the car to increase its speed and crash in the bridge abutment.

The answer to the petition as amended was a general denial. Plaintiff filed a second amendment to her petition, setting forth and reiterating that at the time of the alleged accident the plaintiff was not a guest or passenger in said car by invitation and not for hire, but stated she was riding in said car for the definite and tangible benefit of Mrs. Harris, and Dr. Harris.

Substituted answer was filed by defendants amounting simply to a charge of denial.

On these pleadings the parties went to trial. Evidence was introduced on the part of plaintiff, and when she rested the defendants made a motion for a directed verdict, said motion setting forth that the evidence showed that the relationship between the parties was that of host and guest, and the plaintiff had not shown she was a nongratuitous passenger of the automobile.

Dr. E. E. Harris filed a separate motion for directed verdict, subject to the joint motion of defendants, and subject to the court's ruling thereon, and moved the court to instruct the jury to return a verdict for the defendants upon the ground the plaintiff failed to establish any of the allegations of negligence set out in her petition; that the court take from the jury the ground of negligence No. 1, referring to excessive speed under the circumstances, there being no evidence to support said claim; that the court take from the jury ground No. 2, in that there is no evidence tending to show the driver of the automobile did not have the car under control; that the record merely shows the driver was faced with a sudden emergency which was not of her own making, that she was driving on the road where she had a right to be, and that the car skidded on the sand and she lost control of her car just before the accident happened. The defendants alleged there was no evidence whatever to sustain the allegation defendant carelessly and negligently swerved said automobile into and over a ridge of loose gravel, and there was no evidence to show such driving over the gravel was negligence. The defendants asked the court to withdraw the fourth ground of negligence, to the effect that defendant negligently stepped upon the accelerator, for the reason the record was bare of any evidence tending to sustain such allegation; and as to ground 5, there was no evidence to show that defendant was traveling at a rate of speed toward the bridge that would require her to reduce the speed, and there was no evidence tending to establish the fact that she was traveling at such rate of speed that would be dangerous to cross the strip of gravel; that as to ground No. 6, there was no evidence to show Mrs. Harris drove her automobile off the graveled portion of the highway and into the bridge; that there was no presumption that the mere happening of such an accident would be the result of negligence. The defendants, and each of them, asked the court to take from the consideration of the jury all the allegations of negligence because it was apparent from the record that the plaintiff had not shown herself to be a nongratuitous guest, and there was no allegation of recklessness in the operation of the automobile made in the petition, nor was any such proof found in the evidence.

During further progress of the trial, the plaintiff withdrew the testimony in the record that Mrs. Harris had stepped on the accelerator. To the withdrawal of this evidence the defendant objected, saying the language of counsel for plaintiff was misconduct; that he should know that no such statement was made by Miss Sullivan; that she didn't mention the accelerator at all; and that for counsel to testify to it and withdraw it, is like driving a nail into a barn door and pulling it out and leaving a hole. The remark of counsel for plaintiff was that he withdrew from the record for the consideration of the jury the testimony of plaintiff as to a conversation she had with Mrs. Harris at the hospital, in which Mrs. Harris had said she stepped on the accelerator.

The defendants then renewed their motions for directed verdict made at the close of plaintiff's testimony, which were overruled, then asked that certain instructions be given to the jury numbered 1 to 12, all of which were refused by the court, to which the defendants excepted.

The court then instructed the jury, which, after considering the case, returned a verdict against defendants for the sum of $3,662.25. The court thereafter, on the 25th of November, 1936, entered judgment in favor of plaintiff for the amount of the verdict with costs, to all of which defendants excepted, and appealed to this court.

In looking over the record in this case we are of the opinion that it must be determined under the provisions of the " guest" statute, section 5026-bl, as follows: " The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle."

As the record is wholly void of any evidence that the driver was under the influence of intoxicating liquor, or of any recklessness in the operation of the car, if the record discloses that the plaintiff was riding in the car as a guest, or by invitation and not for hire, then the plaintiff cannot recover.

As to whether or not the case is governed by the " guest" statute, in our opinion, depends practically entirely upon the evidence of the plaintiff in the record. While it is true that she claims expressly in her pleadings that she was not riding with Mrs. Harris as a guest, and bases her claims upon specifications of negligence, it is also true that the facts to support her claims must be examined to determine whether or not the plaintiff's right to recover is governed by this statute. And if it is so governed, then the claims of negligence in her petition are not to be considered.

In her petition plaintiff claimed she had an agreement with Mrs. Harris whereby she was to accompany Mrs. Harris to Minneapolis, and that she was to drive the car for Mrs. Harris from time to time on the trip, as requested so to do. If the plaintiff is sustained in this allegation, her case is not governed by the " guest" statute, but is governed by the rule in ordinary cases. An examination of the testimony is therefore necessary.

The plaintiff in her testimony said she became acquainted with Mrs. Harris about three years before the accident; that she was twenty-nine years of age, and Mrs. Harris in the fifties that she had worked in Grinnell for awhile, and had previously worked in a bank at Brooklyn. Plaintiff testified that while in Grinnell she had occasion to meet Mrs. Harris many times, and that she and her brother resided in the Harris home while Mrs. Harris and the Doctor were in Oklahoma; that she took care of the property at that time. Plaintiff said Mrs. Harris mentioned a trip to Minneapolis while plaintiff and she were on a trip from Brooklyn to Grinnell, a week or so prior to their start for Minneapolis. Mrs. Harris was going there to look for work, nursing being her occupation. In...